RE: Issue found in RFC 3667 text

At 07:49 AM 04/28/04 -0400, Contreras, Jorge wrote:
>As far as the second issue raised by Fred, that was an intentional 
>feature.  If a patent application has not been published and the applicant 
>wishes to maintain the confidentiality of its contents, then he/she should 
>not submit an ID covered by the application's claims unless willing to 
>disclose enough to satisfy the 3668 requirements.

IANAL, and Todd Glassey advises me that there is some recent case law that 
sets aside what I'm about to say. Legal comment would be instructive to the 
discussion.

My understanding is that the confidentiality of the filing is not at his 
option. Since the claims have been neither supported or denied, he cannot 
say what IPR claims he might have. At most, he can say that he "may have 
IPR" related to the draft.

To say that he should not submit a draft in such a case is to say that the 
IETF should stop its work. Generally, invention happens in the course of 
solving a problem. I can solve a problem for my customer and in so doing 
generate potential IPR. If I can't talk about that in the course of 
standardization, the standard will therefore likely not meet my customer's 
needs. Voila, the internet runs on proprietary protocols and procedures, 
and standards lag. It is also to say that vendors are forced to develop 
early proprietary solutions, and their customers are forced to buy them, in 
addition to later standardized solutions, where what the customer is 
requesting is standardized solutions in the first place. Vendors today 
frequently contribute IPR to standardization discussions and solve their 
customers' issues in the context of the standard.

I really need to be able to say that I have filed a defensive patent 
without going into the details of the patent, as I myself don't know more 
than that I have filed it. If the argument is that I should not have filed 
the patent, I can point to a case currently being litigated in which
  - I wrote some code (for a prior employer)
  - I didn't patent it as I had pulled the algorithm out of the research 
literature,
  - An employee of a related company wrote a patent on the algorithm,
  - Now Cisco and said other company are locked in a legal battle.

Corporate policy requires me to write defensive patent applications to 
prevent such situations. So not filing the patent application, however much 
I might prefer it, is a violation of my company's policy. (I do push back 
when IMNSHO it gets to the point of being ridiculous, as rbarr will attest...)

It seems that in a case where the license is free and is extended in any 
case except if the licensing company sues mine (Cisco's practice on such 
things), this should be sufficient. 

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